Will the U.S. survive the 2016 election (continued): A reply to Damon Linker

Sandy Levinson

Damon Linker has a thoughtful reply in The Week to the New York Daily Newsop-ed co-authored by my UT colleagues Jeff Tulis, Jeremy Suri, and myself. He certainly does not disagree with our central premise that Donald Trump is a potential menace to the American republic. The gravamen of his argument is as follows:

[T]he worst possible outcome of the electors throwing the
decision to the House would be for Trump to be denied the presidency. Yes,
Trump poses a very serious threat to the country and its liberal democratic
norms, but he is not the root of the problem. His millions of passionate
supporters are. Among other things, these voters rallied to Trump because they
responded to his message that the country's political and economic system is
rigged against them. Denying the presidency to their preferred candidate after
they'd been told for weeks that he prevailed in the election would confirm
every conspiracy they ever entertained.

That
would be civic dynamite.

There is obviously merit in this view. Indeed, this is one reason that I've been expressing my deep fears that we are a country on the brink of civil war. Certainly the social psychology is already there; the question is whether it will indeed take a more violent form, and it would be irresponsible in the extreme to precipitate the latter unless one truly believed it was a better alternative than accepting the risks of a Trump presidency with his enjoying all of the prerogatives--and they are obviously considerable--of what is usually described as "the most powerful office in the world."We--that is, Tulis, Suri, and myself--do indeed see Trump as an existential threat. I've probably been the most indiscreet in my language, with my repeated reference to him as a sociopath, and I'm not really encouraged to change my tone by anything he's done since election day. But the key question really is the empirical one: Exactly how dangerous does one believe Trump to be, and what risks should his opposition ("loyal" to the country but certainly not to him) be prepared to run? If it were "merely" having to put up with some egregious policy decisions over the next four years before a very likely Democratic victory in 2020, that would be one thing. As James Buchanan argued in 1860, it was politically quite stupid for the South to secede after Lincoln's victory, egregious as it was from their perspective, because it was quite unlikely that he could get any truly radical measures through a Congress that contained representatives and senators from what became the Confederacy, and election prospects would be very good in 1864. (After all, Lincoln won with only 39.8% of the popular vote, and his victory in the electoral college was substantially caused by the presence of three other candidates on the ballot.) So, if one isn't genuinely terrified by Trump, the best thing to do is to plump for a New Deal-style infrastructure program and accept what William Rehnquist might have called "the bitter with the sweet." We continue to be terrified. Benjamin Franklin famously said that we had a republic, but the test is whether we could "keep it." Mark Graber has argued that the answer was no with the election of Andres Jackson, and there is certainly much to that view. But Donald Trump has broken all of the accepted templates of the American form of democratic politics, along with being a raving narcissist and sheer ignoramus on almost all issues of public policy. The best we could hope for is that he will devote his four years in office to plunder and personal enrichment of himself and his family, since that is really the only thing he seems to care about. If that were the only concern, then OK. Corruption of a personal sort is not an existential danger. Teapot Dome did not destroy the Union.Linker suggests that everyone who voted for Trump, who, after all, constitute only a minority of both the Republican Party (about 44% in the primaries) and of the total electorate (around, I think, 46%), really desired what he as a person could bring to the Oval Office. Some of the voters did, no doubt. And, frankly, some portion of that bloc constitute the "deplorable" of whom Hillary Clinton so unwisely spoke, since what they really desire is the restoration of unequivocal white rule, a second "redemption" to follow the now fifty-year-long "second reconstruction." But one must presume that many more of the Trump voters were expressing their anguish at being left out of the globalization boom and believed the con man's promises that he could "make America great again" by restoring the American auto industry of the 1960s and the coal mining of the 1940s (though without a strong United Mineworkers Union). We can well wonder why they would trust anyone running as a Republican but that's another matter. If there is one characteristic of the Republican Supreme Court, after all, it is relentless hostility to labor, as called for by the notorious Powell Memorandum in the early '70s that the Republican majority proceeded adopt. If a real movement developed in the next three weeks to replace Trump with someone whose occupancy of the Oval Office wouldn't keep us up at night, there would undoubtedly be discussions at the highest level as to what the de facto "government of national unity," presided over by a Republican, would look like. The Republican would have to be committed to putting the victimized working class back to work, ideally in a huge infrastructure program, and he/she (probably a male) would have to be willing to bust the Ryan budget to finance the program. And so on. There is no evidence whatsoever that the Trump base has the slightest regard for Paul Ryan's Ayn Radish desire to drown the national government and eliminate every vestige of the welfare state. Trump quite explicitly repudiated attacks on Social Security and Medicare in his campaign (assuming one can trust him, which is another matter). It may well be the case, though, that there are a sufficient number of committed Trumpets who would indeed take up arms and violently protest what they would (with some justice) view as an attempt to steal their triumph, however much it is the product of a thoroughly stupid electoral college system and, in addition, the genuine possibility of voting irregularities in some of the states that gave Trump his narrow victories. Linker's arguments are obviously strong and serious. Even if Trump is fated to become President--and we are doomed to live under the constant anxiety of what exactly that means--it would still be highly desirable to have a number of "faithless" electors, who might instead be described as "constitutional patriots exercising their constitutionally-granted autonomy to vote for the person they in fact believe would make a fine president committed to the central values of the Constitution (which no reasonable person can believe to be true of Donald Trump). Among other things, that might lead to a national discussion of whether we want to conduct our 2020 election under this truly abysmal system, given that everyone would now be aware of the possibility of truly autonomous electors. These are, to put it mildly, not happy times. I don't know of anyone who is expecting to enjoy a truly happy Thanksgiving tomorrow, however much many of us have to be thankful for at the personal dimension of our lives. But our country is facing the most profound internal challenge since 1860. An unscrupulous president like Donald Trump, "advised" by Steve Bannon, might well precipitate a war in order to gin up a mood of "national unity" and support for the strong-man Chief Executive and Commander in Chief. Trump wagged all sorts of dogs in his relentless path to the nomination and the White House. Anyone who believes him incapable of moving to the next level has no understanding of the limitless narcissism and opportunism that is the only constant in his 70 years of exploiting those he sees as weak and vulnerable.

You really need to stop being terrified. It's not a product of Trump, just a product of too deeply buying into your own party's hyperbolic campaign rhetoric about him, and conservatives in general.

It's not unlike a Republican who thought Obama would turn FEMA camps into concentration camps.

"and, in addition, the genuine possibility of voting irregularities in some of the states that gave Trump his narrow victories."

Nate Silver has already looked at these claims. The correlation between the Clinton vote shortfall and certain voting machine types goes away as soon as you control for race and education. It was just a spurious correlation. As one wag put it, 95% confidence level, 50 states, two outside the confidence level, what do you expect?

No, sorry, he won fair and square.

"These are, to put it mildly, not happy times. I don't know of anyone who is expecting to enjoy a truly happy Thanksgiving tomorrow, however much many of us have to be thankful for at the personal dimension of our lives."

See, that's your problem, in a nutshell. You live in a bubble, surrounded by people who are seriously unrepresentative of the general population. You need to find some way to get out of that bubble. And maybe some Prozac.

Seriously, chill out. You lost an election, it happens. Trump is not the next Hitler. You just got fed a line by your own partisans, and bought into it. You'll see.

Well, you'll see if you don't worry yourself into a heart attack. Seriously, chill out.

I would support a small segment of the electors won in the Trump states to vote for someone else as a warning sign of what the Electoral College leaves open.

Anyway, it has been noted that the original understanding of the Electoral College was to have independent electors. But, the actual text does not set this forth. Thus, Ray v. Blair -- citing history and textual analysis -- argued that bound electors do not violate the Constitution.

The Twelfth Amendment sets forth the rules and says electors shall vote by ballot, but those given the power to vote repeatedly are restricted in their discretion. And, even as early as then, it was understood electors was to vote for the candidate they were pledged to vote for.

Art. II instructs that each "State shall appoint, in such Manner as the Legislature thereof may direct." This has currently been understood to include certain things that bound the elector to a certain candidate, even a fine to back that up. The text is open-ended. States need not follow that rule. But, it matches current understanding.

Whatever the original expectations, the text as well as later amendments and experiences that to some extent influence what was ratified before it leave open the current expectations of bound electors. As to the original reply to the op-ed, it has force. Thanks for replying.

Trump is a bland choice, not someone his supporters voted for in part because they felt we needed to seriously be shook up, in some ways in are so unsavory that various non-Democrats were strongly concerned about. It's just an election. Nothing to see here. Seriously, having Brett, far from your average representation of America (atheistic conservative libertarians from South Carolina etc.) talking about "bubbles" is amusing. You know, humor where possible.

As to the irregularities, like Josh Marshall at Talking Points Memo, I doubt they changed the election. But, ballot security is important enough to have redundant mechanisms in place even if there is only a small chance of problems. And, since there is clear evidence a foreign power tried to interfere, worries are that much more well founded to some degree.

I do share the concern about your health. But, perhaps these posts are a useful release for you.

Joe, I may be way out of the norm, statistically speaking, but in a bubble? I go to great lengths to spend time outside my bubble. I got my election news from 538, I have a roster of left-wing blogs I routinely visit and read. I make it a point to get out of my bubble every day, and visit the other bubble.

Unlike Sandy's example, I actually know people who voted for Hillary, and get along with them.

The country is stronger than any one leader. We have had some absolutely incompetent men serve as President, including Jefferson, Madison, Jackson, Polk, Fillmore, Buchanan, Andrew Johnson, McKinley, Wilson, Coolidge, Nixon, Carter, Reagan, and Bush 43. The country has survived every one of them, and only Buchanan really threatened to tear it apart.

We will survive Trump as well, if he turns out to be in this category.

Sandy Levinson associates with conservatives in various ways and is a Southerner by background and work place (North Carolina and Texas at least). I find it hard to believe that he truly doesn't know any Trump voters (if he said that, I missed it) and over his fairly long life (longer than yours) has a wider orbit than many.

The fact "we will survive" can temper the "terror" to some degree, but "we survived" various things. For much of our existence, the President also had a relatively limited degree of power, until at least during the 20th Century, putting aside the Civil War. Plus, there were much mediocrity, but usually the average kind. Finally, 'survive' is a low bar.

OTOH, as compared to other groups (see, e.g., gays during the AIDS crisis where "one leader" and a conservative Congress mattered, not all of whom "survived"), Sandy Levinson does have less to be worried about than other groups, true.

Before you proposed a coup d'tat installing a non-candidate as president, did you really not foresee the almost certain result of such a coup would be a popular uprising against the pretender and very likely much of that uprising would be armed?

Popular opposition to an enormously disproved and distrusted political establishment deposing the legally elected POTUS would extend far beyond passionate Trump supporters and beyond those Americans who held their noses and voted in this election.

Would the military, law enforcement or the Secret Service support the pretender or the legally elected POTUS?

Would Congress work with the pretender or the legally elected POTUS?

How would the Supreme Court rule on the inevitable suit when the capital is besieged by protestors?

"The fact "we will survive" can temper the "terror" to some degree, but "we survived" various things. For much of our existence, the President also had a relatively limited degree of power, until at least during the 20th Century, putting aside the Civil War. Plus, there were much mediocrity, but usually the average kind. Finally, 'survive' is a low bar. "

Nobody would ever deny that plenty of people could be harmed by a bad President. But that argument proves too much-- are we going to have this sort of freak-out and call for electoral college intervention every time someone is elected who could be a harmful President?

The claim has to be that Trump poses some sort of SYSTEMIC threat, not just a threat to individuals. But the country has this way of proving that supposed systemic threats are actually not. And that's not a low bar-- it's not simply that the country survived in the sense that there was no anarchy and no revolution. We are one of the richest countries on earth, a military and economic superpower. And we got that way despite having any number of terrible men occupy the presidency.

By the way, I also agree with Bart's questions (though I would frame them more neutrally). Just because the EC took some sort of action doesn't mean the rest of the political system would recognize it-- you'd very likely produce a factional power struggle with each side's institutions refusing to recognize the other guy.

Eh. "The" claim. There are various claims, various ways to express it.

One perfectly valid way to express things is a fear that Trump has certain qualities to make him PARTICULARLY harmful, especially given the Congress we have and some of the leading members of his Cabinet and overall Administration.

Not "every time," and Sandy Levinson specifically argued just that. He thinks Trump is much worse than a range of people he would oppose -- he included George W. Bush -- on various grounds. As to the "systemic" threat, I already mostly granted that not being the case. There is a lot that can occur, some reason to 'freak out,' without that occurring.

Finally, the threat there is so serious that even a relatively small chance of something happening can be terrifying. For much of our history, POTUS didn't have the power to cause that much damage. There is more of an opening today, especially since Congress et. al. in effect gives the POTUS a large benefit of the doubt about a range of things. A person someone thinks is particularly horrible and unfit, at least a Buchanan for instance served in government and knew its workings from the inside, might "terrify."

Bart wonders how anyone would not rise up if the electors did what they were intended to do and exercised their own judgement in selecting the next president. Well, we somehow live with elections, including this one,where the winner of the popular vote isn't sworn in. It's a silly, undemocratic anachronism built into our system just like the electors part of the EC. We've all come across the smart Alex trivia nut who says 'did you vote for President today? Actually, you didn't, you voted for an elector who says he'll represent that guy!' If we all didn't know by now that electors were intended to exercise separately from the popular vote in their state, just as we now know the popular vote winner won't always win, then that's fool us twice, shame on *us.*

Part of my problem with the argument is my lack of confidence that ANY ideologue can ever be honest on questions like this.

Part of having an ideology is believing that the other side is evil, that every election is life-and-death, that political opponents are a threat to the system, etc.

And because of this, the only way you can ever have a stable political system is if everyone agrees that this is just rhetoric and doesn't act like losing an election is cause for a revolution or a coup. The one time this broke down, when the whining slaveholding traitors in the South threw a tantrum after the 1860 election, we got a civil war and hundreds of thousands dead.

The reality is, if you believe in democratic values, the fundamental value is you don't mess around with election results. Much, much more fundamental than "majoritarianism" or "Trump is a uniquely bad candidate" or anything else. You hold the election, you don't like the result, and you accept it. Period. Non-negotiable.

Now, could there be some situation where the ideologues are actually right and there's an actual threat? Yeah, there could be. But for every one of those, there's going to be 20 or 30 or 40 situations where the ideologues are wrong and if we countenance them doing crap like this we destroy the Republic.

And that's why, to me, the panic of Sandy Levinson and the hackishness of Mark Field are a much bigger threat to America than the questionable temperament of Donald Trump. Because there's a much bigger probability that we get ourselves in trouble by throwing out the principle of respecting election results than by electing a lousy leader. Lousy leaders can be impeached. Who impeaches Mark and Sandy if they stir the public up against an election result?

What's funny about this is the EC has two stupid undemocratic features. The first is the idea that states matter more than popular vote. The second is the electors. The electors are not couriers who are supposed to just report the state's popular vote, the entire point of having an elector is to exercise choice possibly independent of the popular vote.

Now, Bart and Brett have counted on the first feature of this silly anachronism while bellyaching loudly about the mere suggestion of the second option actually being exercised as intended as the most horrible assault on democracy ever. Hilarious.

Mr. W: Bart wonders how anyone would not rise up if the electors did what they were intended to do and exercised their own judgement in selecting the next president. Well, we somehow live with elections, including this one,where the winner of the popular vote isn't sworn in.

1) Constitutionally and under state law (which is the same thing here), the vast majority of electors have no power to change the outcome of the election.

2) Culturally, we have popularly elected presidents under the structure of the electoral college for two centuries.

If Sandy was calling for faithless electors to violate the law and electoral norms to select Clinton, the Democrats who do not give a damn about any law or electoral norm which interferes with their power would support that coup and we would have Sandy's civil war.

However, Sandy's plan does not call for violating the law in favor of the candidate who edged the President-elect with a plurality of the popular vote because he knows there is no way in hell the GOP House would choose Clinton as President. Instead, he calls for the political establishment chosen as electors to impose on the American people a pretender from the Republican political establishment who did not stand for election.

Who is going to support this pretender?

The Republican and a majority of the Indi voters will rise up to support the President for which they voted.

Many of us who still believe in the Constitution, but do not support Trump for policy reasons, are also likely to rise up. This soldier who swore an oath to defend the Constitution will definitely do all I can to stop this coup.

The Democrats are not going to the barricades for some Republican pretender just because he is not Trump. This hysterical paranoia about Trump is restricted to the fever swamps where Sandy has apparently taken up full time residence.

This will not be a civil war, it will be an uprising to reverse a coup.

Sandy, regarding certain comments concerning your health, I assume that Jack and other colleagues at this Blog and elsewhere have your back in that regard and that the situations you have described in your many posts on Trump are not adversely impacting upon your health. Over the years I have enjoyed and appreciated your posts and law review articles that I have downloaded. I agree with you much of the time. The one area where I have some discomfort is with a second constitutional convention, which I fear would make thinks worse than the undemocratic Constitution you have described so well. So assuming your posts are not impariing your health, keep on posting. While some commenters may be sincerely concerned with your health, others in their non-nuanced ways are troubled by the contents of your post post, truth to power. We all know some history of past times when enough people didn't speak up about events that led to tragedies here in America and throughout the world. NYTimes Columnist Charles Blow, who was not present at the on-the-record meeting of the Times with Trump yesterday, has a response today at the Times' online website. He's speaking up. So have Times columnists who were present. I'm awaiting Maureen Dowd and Gail Collins' upcoming columns, perhaps addressing Trump's misogyny directed at them at the meeting.

While I have been one of the usual suspects at this Blog, I have not weighed in that much on some of your recent posts. But I have been following the comments with care. You kindly allow for comments. You don't have to. That's been a sign of the courage of your convictions. Yes, some of the usual suspects will do their ranting with their comments. But there may be a silent majority who take in your posts without commenting. So I urge you to keep up with expressing your concerns with the state of our nation under a Trump presidency. Stay healthy while you do so, for the health of our nation.

I want to express my special appreciation to Joe for his carefully nuanced understanding of my position. It all really does turn on how much one is "terrified" of the particular person Donald Trump and his possession of the formidable powers of the contemporary presidency. I greatly respect those who believe we can get through this, including my friend going back to graduate school days, Barney Frank, who is the subject of a wonderful interview by Jeff Tobin in the New Yorker online. Quite obviously, I hope that all of you are correct and I am totally wrong, given that it is highly unlikely that the "coup" I advocate--and I can truly understand why those who disagree with me refers to a coup, perhaps in the same sense that Michael Karman believes that the Framers staged a "coup" in Philadelphia. Most likely, we're going to have a "natural experiment" in the next several years, an all-time "stress test" about the capacity of our established institutions to rein in a sociopath. As I've argued several times (and believe), our future may ultimately be in the hands of three or four Republican senators who will display sufficient backbone to join with Democrats in stifling Trump on those occasions when he actually needs legislative approval. What is truly terrifying is the capacity for de-facto unilateral action built into the modern state.

I also appreciate Shag's kind remarks about my health. I feel fine physically, thank you, though, like most of my friends, I am more stressed out than ever before in our lives by the drift of the the country at large.

Julie Silverbrook, the Executive Director of The Constitutional Sources Project, said this right after the election:

No matter the outcome of #Elections2016, our Constitution & our principles will endure if We The People devote ourselves to preserving them.

https://t.co/xnKxWaZrRS [good blog for these times as is her Twitter feed ... someone who gives out free Constitutions with candy on Halloween is someone we need in these times]

I personally think that is true, but our Constitution and principles endured through some tough times too, as I said, ones where many people got hurt & the system as a whole was broken in various ways. Racism, which still exists, causes "systemic" problems after all. That's just one issue.

And, people here -- including those telling people to calm down -- already have cited rot in institutions in place. Perhaps, like days of yore where violence was so much more acceptable as compared to now where even executing a horrible murderer badly causes deep concern, lack of terror is just too much acceptance of a bad thing.

Anyway, the electorate failed a test on Election Day. Lots more tests to come.

Nobody intelligent ever honestly said and believed that our Constitution, or any democratic system, guarantees good outcomes.

All it provides is an orderly remedy against bad ones. That's actually all any Constitution can guarantee.

But in order to maintain that order, people can't act like the South did in 1861 and refuse to abide by election results. It doesn't matter whatsoever if you think the result was really bad. We are all in this together.

I get it. No one promised us a rose garden. Did I say otherwise? No, I did not. You are laying it on as thick as you believe Sandy Levinson is. Nor did I say we aren't in this together. He didn't either, even if some of his arguments on how to protect ALL OF US in the long run is something you disagree with.

Trying to get electors to change their mind is something the Constitution allows. I don't think it's a good idea and it goes against current constitutional norms, but it is not secession from the Union. It isn't likely to lead to a deadly Civil War. Which we "survived," so maybe we shouldn't have been "terrified" about that either. SL has raised the specter of things being so bad that secession might be necessary, but my concern is much more narrow here. One failed test isn't' grounds for expulsion.

The "election results" aren't even completely in yet. I didn't speak of "guarantees." I spoke of a test. And, I stick by it. Benjamin Franklin's alleged quip about "keeping it" in respect to a republic was a sort of test.

The Constitution requires an imperfect populace and the people specifically given powers to apply it to show a certain degree of care in doing their duties. It is perfectly appropriate to hold them up to scrutiny and say they -- we as a whole -- failed a "test" of some sort. An appropriate metaphor. The Constitution gives us a certain responsibility, including when we choose a candidate or decide if a person is innocent or guilty. Sometimes, we fail it.

It also provides various checks and balances to handle such human fragility. But, it is not to me helpful to not even speak of it. And, it doesn't negate that "we are all in this together."

comports with his long held view that America's best days were the late 19th century's The Gilded Age. Yes, SPAM dreams of those days of yore he never personally experienced in his battle against the "modern state" in the manner of Don Quixote in the windmills of his mind.

I have been growing alarmed for quite some time now in regards to the issues you raise here. I am not sure where I read this first, but these last few months -- and weeks in particular -- I keep fixating on this bit from Learned Hand:

"I often wonder whether we do not rest our hopes too much upon constitutions, upon laws, and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it. While it lies there, it needs no constitution, no law, no court to save it.

"And what is this liberty which must lie in the hearts of men and women? It is not the ruthless, the unbridled will; it is not freedom to do as one likes. That is the denial of liberty, and leads straight to its overthrow. A society in which men recognize no check upon their freedom soon becomes a society where freedom is the possession of only a savage few - as we have learned to our sorrow.

"What then is the spirit of liberty?

"I cannot define it; I can only tell you my own faith. The spirit of liberty is the spirit which is not too sure that it is right; the spirit of liberty is the spirit which seeks to understand the minds of other men and women; the spirit of liberty is the spirit which weighs their interest alongside its own without bias; the spirit of liberty remembers that not even a sparrow falls to earth unheeded; the spirit of liberty is the spirit of him who, near two thousand years ago, taught mankind that lesson it has never learned, but has never quite forgotten - that there may be a kingdom where the least shall be heard and considered side-by-side with the greatest."

1. I think encouraging insurrection against the US is the road to violence. It is irresponsible, and immoral, to encourage a coup against the government by the electoral college. If it succeeded, it would lead to mass violence.

2. The election is over. Doesn't matter if they are still counting votes. Trump won. There is zero room in a democracy for refusing to accept election results. If enough people do it, we get violence and a civil war.

3. The purpose of the Constitution is not to deliver perfect majoritarianism. It's simply to create a legitimate system so that losers don't stage a revolution. It's a violence containment mechanism. But it only works as long as everyone accepts the results.

4. You are dead wrong. The Constitution DOES NOT permit faithless electors. It did in 1787, but it doesn't anymore because we have a living Constitution and we have all accepted a different meaning. What Sandy is advocating is unconstitutional as well as terrible.

5. The voting public does not do "tests". They vote for whoever they want to. If the person elected doesn't meet your personal standard of what a leader should be, too bad. You don't get to decide that. They owe you absolutely no obligation to support the same candidates you do. If you don't like the election winner, seek his impeachment, seek his replacement in 4 years, or leave the country and go to a place where you agree with the choices of the voters. Those are your three options.

6. We still have checks and balances. Trump won't have dictatorial powers, and he will be subject to impeachment. But you know what? If you and Sandy succeed with your rhetoric, the Constitution could lose its legitimacy. And we could have massive violence. Do you think we will have checks and balances then?

We have a decent system. But it only works as long as nobody works to thwart election results. As I said, I fear liberals who are trying to do this much more than I do Trump. A bad President can't destroy the country. Refusing to accept election results can.

I'd like to weigh in on Sandy's point about how one's assessment of the danger of a Trump presidency is tied to the question of what kind of political action is justified by the current situation.

I do not believe that the current situation justifies any form of extraconstitutional or extralegal action, and at the risk of speaking for others, I think it's safe to say Sandy and his colleagues, and in fact most everyone, agrees with this. However, I do think the situation is dangerous enough that any kind of constitutional and legal procedure available should be employed to try to stop Donald Trump from becoming our 45th president. In fact, I think sitting back and not attempting to use all constitutional and legal means to stop him could be a morally suspect position.

Now Dilan above states: "The Constitution DOES NOT permit faithless electors. It did in 1787, but it doesn't anymore because we have a living Constitution and we have all accepted a different meaning." But if we indeed have a "living" constitution then of course there is nothing preventing a new interpretation at this point, and the fact that folks in the past may have agreed on a prior interpretation is only one consideration in the question of what the constitution should mean to us today. In fact the question of the constitutionality of whether electors should be permitted to be faithless is a question best addressed by constitutional law experts, and ultimately a question we must rely on our judiciary to decide. But importantly, suggesting this as a possibility should not be seen as undermining the rule of law. As we know, the boundaries of the law and the constitution are not entirely clear, and we must always rely on our judges to identify exactly where they are. And again I do think the current situation justifies stepping into those boundary areas where necessary and letting judges decide if we have gone too far. (I also support the current recount efforts in close states, by the way.)

What about the question of whether using all available legal means to stop Trump may end up inciting violence, as Damon Linker suggests? This is admittedly a much harder question, and it's of course a more empirical and predictive one. But I think most Trump supporters by this point understand that Clinton is the clear popular favorite in this country, and that Trump is only being called president-elect because of this not-completely-democratic system called the electoral college. So perhaps many of them will understand that this electoral college could also work against them. In any event, I agree there may be a real threat of some violence here, but I'm not sure how much, and I'm also not sure how much this should count as an argument against using available legal means to prevent a Trump presidency, particularly if one believes there is a moral duty involved. And finally, one good thing that might come from this use of the electoral college could be wider agreement that it needs to be abolished or at least modified going forward.

Let's take an extreme case. If Clinton obtained a tiny number of votes more relatively speaking in PA and MI, she would lose the electoral vote without more 270-268. This so even though she could win three million more votes or whatever.

The rules sometimes results in such a fashion. But, the rules also tend to have some wiggle room, which at times has a possibility of avoiding extreme results. It does not seem to be outside the realm of reasonableness that some scenario can arise where it would make sense for two electors to change their vote from what they were pledged to follow. Again, take an extreme case. Let's say Trump kills someone on 5th Avenue between now and mid-December. It would not horrify me if those two electors did that.

Simply put, the argument is that things aren't that bad, though on principle I'm not sure if some would even allow the electors to do that. The system in place doesn't let popular vote rule. And, even in the latter scenario, we can trust Congress etc. to act. But, the Constitution -- which was not amended to avoid it so we are stuck with the bitter and the sweet there -- leaves open elector discretion. For instance, in 2000, would electors have the power to determine Gore net (all things considered) received the most votes in Florida, so they should vote for him?

Anyway, living constitutions live on. I'd end with saying that includes secession. It to me is not necessarily never never warranted. Who is to say? What if Nazis come to power, truly bringing tyranny to this country. And, there is a means for some states to be protected from them if they seceded. It might be the best way to uphold the principles of the Constitution in the long run.

Regarding secession, keep in mind the time such action took place and the reaction thereto. Consider Joe's example:

"What if Nazis come to power, truly bringing tyranny to this country."

How would the Nazis in power react? Would the Constitution live on?

We do not have a situation of Nazis as yet. But there continue reports of Russia's efforts to interfere in the election by taking steps favoring the election of Trump. What if following January 20, 2017, there is strong evidence that Russia indeed took such steps? It would be too late for the EC to take action. Is it in the interests of America's voters, those who voted for Trump and those who voted for Hillary, to know about the role of Russia? Is it in the interests of the EC electors to be concerned about the role of Russia in the 2016 election? Another question is whether it would make a difference to Trump supporters, or to Trump himself? The movie "The Russians Are Coming" was a comedy. This could be a tragedy.

By the Bybee [expletives deleted], check out Larry Lessig's OpEd in the WaPo on the EC.

Rick Hasen's reply to that op-ed is to be strong: http://electionlawblog.org/?p=89486

As to the scenario, the Nazis might react as the Union did in 1861. The test would be then if the risks were worth it. The South is an easy target given what they were defending and because it was a fair election. But, take out one or the other, and it gets more tricky. And, what of our own "secession" in 1776? Could not some claim "we" should stick together too, those unjustly treated in Canada or the like losing out?

. “When William Henry Harrison died in office, a debate arose over whether the Vice President would become President, or if he would just inherit the powers, thus becoming an Acting President . John Tyler believed that he had the right to become President. However, many Senators argued that he only had the right to assume the powers of the presidency long enough to call for a new election. Because the wording of the clause is so vague, it was impossible for either side to prove its point. Tyler took the Oath of Office as President, setting a precedent that made it possible for later Vice Presidents to ascend to the presidency unchallenged following the President's death.” The issue on the Constitution clause was never decided. Even though, the Tyler president was a question on a Presidents death. The same logic could apply to the question of Trumps legitimacy . Instead of a death of a president it involves the legitimacy of an a president elect. Lets say, the counting of the votes for some states proved that Clinton won states previously given to Trump creating a Constitutional crisis. The clause of the original Constitution could be revived to cover current conditions. The senate at the time believed:” Many Senators argued that he only had the right to assume the powers of the presidency long enough to call for a new election. Because the wording of the clause is so vague, it was impossible for either side to prove its point. The precedent remained but a determination on the original clause never happened. This raises a question could the original clause offer a solution for Trump not actually winning the electoral vote: 1) The Senate at the time believed a vice president could act as a temporary president and a election could proceed to elect a legitimate president. It also says, “ the original Constitutional was to vague to decide”. There are some similarities to the present circumstances. Solution, extend President Obama’s term giving enough time for a Supreme Court review ; the next decision is it Constitutional to call for new election, with the same nominees and would this require Congress to concur These two situations have some commonality, far fetched but possible. Having a new election would create legitimacy of the president no matter who was elected.

Regarding Jack's post on his I Ching book published in 2009, was it written in response to the 2008 presidential election results? I haven't checked back in the Archives of this Blog for a post timely with the book's publication. Consider how the Republican Party responded to the theme of Jack's book following its publication. Is Jack recommending that liberals and progressives follow the theme of his book regarding the 2016 presidential election? I wonder about Sandy's reaction to Jack's post. Of course, sometimes a a post (like a cigar?) is just a post.

I am not sure what you want since you already have my comment above. If you need it posted again let me know. However, I will post it again.

. “When William Henry Harrison died in office, a debate arose over whether the Vice President would become President, or if he would just inherit the powers, thus becoming an Acting President . John Tyler believed that he had the right to become President. However, many Senators argued that he only had the right to assume the powers of the presidency long enough to call for a new election. Because the wording of the clause is so vague, it was impossible for either side to prove its point. Tyler took the Oath of Office as President, setting a precedent that made it possible for later Vice Presidents to ascend to the presidency unchallenged following the President's death.” The issue on the Constitution clause was never decided. Even though, the Tyler president was a question on a Presidents death. The same logic could apply to the question of Trumps legitimacy . Instead of a death of a president it involves the legitimacy of an a president elect. Lets say, the counting of the votes for some states proved that Clinton won states previously given to Trump creating a Constitutional crisis. The clause of the original Constitution could be revived to cover current conditions. The senate at the time believed:” Many Senators argued that he only had the right to assume the powers of the presidency long enough to call for a new election. Because the wording of the clause is so vague, it was impossible for either side to prove its point. The precedent remained but a determination on the original clause never happened. This raises a question could the original clause offer a solution for Trump not actually winning the electoral vote: 1) The Senate at the time believed a vice president could act as a temporary president and a election could proceed to elect a legitimate president. It also says, “ the original Constitutional was to vague to decide”. There are some similarities to the present circumstances. Solution, extend President Obama’s term giving enough time for a Supreme Court review ; the next decision is it Constitutional to call for new election, with the same nominees and would this require Congress to concur These two situations have some commonality, far fetched but possible. Having a new election would create legitimacy of the president no matter who was elected.

Joe: What if Nazis come to power, truly bringing tyranny to this country.

I presume you are referring to the Gestapo and concentration camp Nazis as opposed to our current government which has adopted several fascist policies since the 1930s.

Our system has multiple checks on such tyranny:

1) The American Nazis would need far more electoral support than Hitler ever enjoyed in order to take the presidency and majorities in both houses of Congress. If an American Hitler only took over the presidency, der Fuhrer would have to get past Congress.

2) If the American Nazis took over or bypassed the elected branches, they still have to contend with the courts, law enforcement and the military sworn to defend the Constitution.

3) Finally, the People themselves can impose a Second Amendment solution. Our military could not begin to hold a continental nation against an uprising of even a minority of firearm owners in the United States.

This is why the real threat of tyranny is stealth rule through a bureaucratic dictatorship ruling by decree behind the facade of an elected government. Jack's "presidential rule" or Sandy's "modern state."

Plenty of Hungarians thought as you do in the wake of their 2010 election. They were wrong. So are you. Trump means to be our last democratically elected President, and thanks to people like you, he may very well succeed.

In thinking more about the "living Constitution" issue, I'm not sure it has that much force. Before 2000, the EC hadn't been a factor since 1888. That is, not within the lifetime of anyone still alive in 2000. It was widely viewed as a relic of another time, not as an accepted feature of the US system. No other country in the world uses one, and the US itself didn't include one in the Constitutions we wrote for Germany and Japan after WWII.

Even the impact of the EC in the two cases of Hayes (1876) and Harrison (1888) doesn't strike me as proving much. The 1876 election was famously corrupt on both sides; nobody can say with any assurance what the "true" vote might have been. In any case, the EC itself was contested in 1876 and the election eventually awarded by an ad hoc, extra-Constitutional Commission. The EC did get used in 1888, but the electorate then was essentially white and rural -- that's who the EC benefits, see http://cepr.net/blogs/beat-the-press/in-the-electoral-college-white-votes-matter-more -- so the undemocratic nature of the EC was much less significant in overall context.

That leaves 2000 as the lone possible example. The fact that the Court intervened in an almost universally condemned case strikes me as diluting any claim that the public at large accepts the EC as an essential feature.

In short, I think the "living Constitution" argument about the EC does have some force, but less than many other such claims. Perhaps the most important piece of evidence in favor of such will be our reaction to this election.

The "LC" issue that is basically at issue here is that whatever the original understanding, electors are bound to the popular vote totals, and are not independent actors. They are not appointed in a way that leads to that expectation or to be qualified for independence. etc.

The fact the electoral vote did not change the election isn't the issue really. It did have certain mild effects. For instance, the electoral vote made certain presidents seem to have a bigger "mandate" than popular vote totals. So, Mondale "lost nearly all the states" but it is not like he only received 3% of the vote. Also, it helped make third parties much less a thing.

Anyway, some of the reactions of past elections from the right makes it amusing when those on that side now tut tut.